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Author: 



Lee, Blewett 



Title: 



The thirteenth 
amendment and the 

Place: 

Chicago] 

Date: 

1917] 



?^'/^<7/^- 9 



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Lee, Blewett, 1867- 

The thirteenth amendment and the general railway 
strike, by Blewett Lee . . . [Chicago ? 1917] 

cover-title, 20 p. 25'". 

"Reprinted from the Virginia law review for March, 1917 ..." 



J^ Strikes and lockouts. 2. Arbitration, Industrial—U. S. I. Title. 

/"] i36bl, A 17-412 

Title from Bureau of Railway Economics. Printed by L. C. 



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THE THIRTEENTH AMENDMENT 



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AND THE 



GENERAL RAILWAY STRIKE 



BY 

BLEWETT LEE 

Chicago, III. 



P 



LIBRARY OF CONQrtEl.. ..ro A17^;j, 



Reprinted from the 'Oirginia Law Review for March, 1917, 
published by the University of Virginia Law Department 






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The Thirteenth Amendment and the 
General Railway Strike. 



IMMEDIATELY before the passage of the Adamson Law, 
^ September 3, 1916, a general strike was called of the rail- 
way trainmen of the United States, and the country was face 
to face with a situation which the President said should never 
be allowed to occur again. The passage of this statute is the 
only thing which prevented the country from being plunged im- 
mediately into a situation of the greatest distress and privation. 
Practically all of the railroad transportation would have come 
to an end for the time being, and the results to the masses of 
the people would have been more frightful than those of war 
itself. In two messages to Congress the President has proposed 
the enactment of a statute making it an offense to declare or 
cause a lockout or strike, or to incite, encourage or aid in so do- 
ing, until a Board of Mediation and Conciliation shall have passed 
upon the dispute and made public its recommendations. It has 
been stoutly contended, however, on behalf of the leaders of 
organized labor, that a statute of this character would be contrary 
to the Thirteenth Amendment to the Constitution of the United 
States, forbidding involuntary servitude except as a punishment 
for crime, whereof the party shall have been duly convicted. 
Is there in fact any constitutional impediment to constructive 
legislation of such a character as the President has proposed, 
and which exists in the Dominion of Canada, in the Australasian 
Commonwealths and in almost every important civilized State, 
with the exception of the great democracies of England, France 
and the United States ? In Holland, after the general railway 
strike in 1903, legislation was passed to prevent the possibility 
of so great a misfortune in the future. In France in 1910, the 
general railway strike was ended in six days by the State mob- 
ilizing the strikers and requiring them to run the trains as a 
part of their military service. In England, since all of the rail- 
ways are operated by the State, the possibility of a general rail- 

[1] 






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way strike has been done away with, at least until the return 
of peace. In the United States, however. Congress has as yet 
enacted no statute to protect the public against this great catas- 
trophe.^ 

Legal machinery for the peaceable adjustment of labor dis- 
putes in industries generally is provided, and strikes and lockouts 
are forbidden, under penalties, in the Commonwealth of Australia, 
New South Wales, South Australia, Tasmania, Western Aus- 
tralia, New Zealand and Denmark ; and in the more limited class 
of public utilities, such as railroads, similar machinery exists in 
Queensland, Austria, Belgium, Canada, Holland, Italy, Turkey, 
Portugal, Roumania, Russia, Spain, the Transvaal and Switzer- 
land.- In Spain and Portugal, tliere may be a strike after public 
notice has been given for a certain numljer of days, and a public 
statement made as to the causes of the strike. In France, the 
government has a right to mobilize the strikers under military 
law and compel them to return to duty, and the same power ex- 
ists in Italy. In Germany, strikes and lockouts are practically 
prohibited on public utilities ; the by-laws of the railway unions 
sf>ecifically waive all claim to the right to strike, and a workman 
who struck would lose a position for life in the service of the 
government. In England, the adjustment of labor disputes is 
by voluntary arbitration, for which there exists full and effective 
machinery ; but there is no legislation prohibiting strikes or lock- 
outs. 

A review, therefore, of the situation as it exists amongst most 
of the civilized countries of the world, shows that in nearly all 

' See generally, Railway Strikes and Lockouts, a study of arbitration 
and conciliation laws of the principal countries of the world providing 
machinery for the peaceable adjustment of disputes between railroads 
and their employees, and the laws of certain countries for the prevention 
of strikes, published by the United States Board of Mediation and Con- 
ciliation, November 1, 1916, Washington, Government Printing Office. 
For a treatment of the subject from its historical and economic side, 
attention is called to a valuable article on "Government Prevention of 
Railroad Strikes." by Samuel O. Dunn, Editor of the Railway Age Ga- 
zette, appearing in the March, 1917, number of Scribner's Magazine (Vol. 
61, p. 307). 

' See Monthly Review, U. S. Bureau of Labor Statistics, January, 
1917, p. 11. 

[2] 



.• « 






of the, and especially in English speaking countries, outside of 
England and the United States, the laws forbid strikes or lock- 
outs upon railroads. General railway strikes have been called 
in Hungary, France, Holland and the United States, the gen- 
eral strike in the United States being, however, averted by a 
partial surrender of the government to the demands of the 
strikers and the passage of a law requiring the employers to in- 
crease the w^ages of certain employees, including some of those 
already most highly paid, provision being made for inquiry 
afterwards as to the merits of the settlement. 

It is plain that the Thirteenth Amendment, when it says : 

"Neither slavery nor involuntary servitude, except as a pun- 
ishment of crime whereof the party shall have been duly 
convicted, shall exist within the United States, or any place 
subject to their jurisdiction." 

has reference to the compelled labor of individuals. There is 
nothing in the Amendment which guarantees any right of em- 
ployees to conspire together to quit the service of an employer 
all at the same time. The Amendment certainly contains no 
guarantee of a right to destroy the business of an employer by 
concerted action. At the most, it can mean nothing more than 
the right of an individual, acting alone, to quit work. The right 
to strike is the right to quit work in concert by agreement, and 
this certainly the Thirteenth Amendment does not cover. The 
right of a man to cease labor which is distasteful to him, by in- 
dividually quitting his employment, is one thing, and an agree- 
ment that everybody shall lay down their tools at once, is another. 
The Thirteenth Amendment does not doom us to perpetual in- 
dustrial anarchy. In any employment, public or private, it would 
be possible to substitute the orderly process of hearing and judg- 
ment of a tribunal for the lawlessness of civil war between 
capital and labor. 

In case, however, of an employment in which the public has 
an interest, like that of a railway trainman, the analogy of the 
soldier or sailor in public employment, or of the seaman in pri- 
vate employment, is very persuasive. It is submitted that the 
service of an interstate carrier may by statute be treated as an 
enlistment in which men may be required to serve out their 

[3] 



3f 



I 1 



terms, or at least stay at their posts until their places can be filled. 
In the case of the seaman on a ship engaged in private service, 
it is a sufficient justification that the service is of such public 
imix)rtance that he will not l)e allowed to desert it. Ships must 
sail, and new sailors are not always available. Engineers must 
not leave their trains between terminals. In the case, however, 
of a seaman engaged in the service of a public utility, as of the 
railway trainman, we have an additional element that in a very 
real sense the employment is in the public service and the wel- 
fare of the State requires that he must stay at his post until 
relieved from duty. 

In the case of I\ol)ertson ■: . Baldwin,-^ the question was pre- 
sented of the validity of certain sections of the Revised Statutes 
of the I'nited States, which permitted the arrest and forcible 
return to a vessel of seamen who deserted the ship before the 
expiration of the contract which they had signed shipping ar- 
ticles to perform. The defense was set up that the statutes were 
in confiict with the Thirteenth Amendment. forl>idding slavery 
and involuntary servitude. Upon this point the court said : ■* 

"Does the epithet 'involuntary' attach to the word 'servitude' 
continuously, and make illegal any service which becomes 
involuntary at any time during its existence; or does it at- 
tach only at the inception of the servitude, and characterize 
it as unlawful because unlawfully entered into? If the 
former be the true construction, then no one, not even a 
soldier, sailor or apprentice, can surrender his liberty, even 
for a day; and the soldier may desert his regiment upon 
the eve of battle, or the sailor abandon his ship at any inter- 
mediate port or landing, or even in a storm at sea, provided 
only he can find means of escaping to another vessel. If 
the latter, then an individual may, for a valuable considera- 
tion, contract for the surrender of his personal li])erty for 
a definite time and for a recognized purpose, and subordi- 
nate his going and coming to the will of another during the 
continuance of the contract; — not that all such contracts 
would be lawful, but that a servitude which was knowingly 
and willingly entered into could not be termed involuntary. 
Thus, if one should agree, for a yearly wage, to serve an- 
other in a particular capacity during his life, and never to 



165 r. S. 215 (1897). 



* p. 280. 
[41 



leave his estate without his consent, the contract might not 
be enfoiceable for the want of a legal remedy, or might 
be void upon grounds of public policy, but the servitude 
could not be termed involuntary." 

The court was also of the opinion that if a contract with seamen 
could be considered within the letter, it would not be within the 
spirit of the Amendment a case of involuntary servitude, point- 
ing out that from ancient times the necessity had been recognized 
for compelling seamen to fulfill their obligations to carry out 
the voyage. 

Mr. Justice Harlan dissented, and maintained the doctrine 
that: 

"A condition of enforced service, even for a limited period, 
in the private business of another, is a condition of invol- 
untary servitude." ^ 

He made the following distinction in regard to military service : 

"The Army and Navy of the United States are engaged in 
the performance of public, not private, duties. Service in 
the army or navy of one's country according to the terms 
of enlistment never implies slavery or involuntary servi- 
tude, even where the soldier or sailor is required against 
his will to respect the terms upon which he voluntarily en- 
gaged to serve the public. Involuntary service rendered for 
the public, pursuant as well to the requirements of a statute 
as to a previous voluntary engagement, is not, in any legal 
sense, either slavery or involuntary servitude.*'' 

"The condition of one who contracts to render personal 
services in connection with the private business of another 
becomes a condition of involuntary servitude from the mo- 
ment he is compelled against his will to continue in such 
service.*^ 

"If Congress, under its powder to regulate commerce with 
foreign nations and among the several States, can author- 
ize the arrest of a seaman who engaged to serve upon a 
private vessel, and compel him by force to return to the 
vessel and remain during the term for which he engaged, 
a similar rule may be prescribed as to employees upon rail- 
roads and steamboats engaged in commerce among the 
States." « - 



' P. 292. 
' P. 301. 



" P. 298. 
' P. 302. 



[5] 






It may be observed in the illustration which Mr. Justice Harlan 
puts, that public carriers engaged in commerce among the States 
and railway trainmen in their employ are not carrying on a pri- 
vate business, and that the ver>' public nature of their business 
makes the case like the case of a soldier or sailor, enlisted in the 
army or navy of the United States, to such an extent that Con- 
gress can by law compel the employee to fulfill his engagements 
when necessary in the interest of the public safety and welfare. 
Congress can fix the rates of railroads. It can also keep rail- 
roads going. 

That this presents a real distinction, was recognized by Mr. 
Justice Harlan himself in delivering the earlier opinion, in the 
Circuit Court of Appeals for the Seventh Circuit, in the case of 
Arthur z'. Oakes," where an injunction was sought against the 
employees of the receivers of the Northern Pacific Railroad 
Company, "from so quitting the service of the said receivers, 
with or without notice, as to cripple the property or prevent or 
hinder the operation of said railroad." In this case the court 
held that it was contrary to the practice of a court of equity to 
compel the performance of personal service, since the court could 
not undertake to supervise a continuous act, involving labor and 
care. On this point, the court also said : ^^ 

''It is supposed that these principles are inapplicable or should 
not be applied in the case of employees of a railroad com- 
pany, which, under legislative sanction, constructs and main- 
tains a public highway primarily for the convenience of the 
people, and in the regular operation of which the public are 
vitally interested. Undoubtedly the simultaneous cessation 
of work by any considerable number of the employees of a 
railroad corporation, without previous notice, will have an 
injurious effect, and for a time inconvenience the public. 
But these evils, great as they are, and although arising in 
many cases from the inconsiderate conduct of employees 
and employers, both ecpially indifferent to the general wel- 
fare, are to be met and remedied by legislation, restraining 
alike employees and employers so far as necessary ade- 
quately to guard the rights of the public as involved in the 
existence, maintenance and safe management of public high- 



' 63 Fed. :nO (1S94). 



'" Pp. 318, 319. 
[6] 



ways. In the absence of legislation to the contrary, the 
right of one in the service of a quasi public corporation to 
withdraw therefrom at such time as he sees fit, and the right 
of the managers of such a corporation to discharge an em- 
ployee from service whenever they see fit, must be deemed 
so far absolute that no court of equity will compel him, 
against his will, to remain in such service, or actually to 
perform the [>ersonal acts required in such employments, or 
compel such managers, against their will, to keep' a particu- 
lar employee in their service." 

It will be observed that the court very clearly intimates that by 
legislation the power of an employee to quit the service of a 
railroad company could be controlled. 

In the case of a private employment, such as the service of a 
laborer upon a plantation, the employee cannot be compelled to 
labor as he promised he would do. This is a necessary inference 
from the rulings which have been made by the Supreme Court of 
the United States in peonage cases, the state peonage being one 
in which a laborer is compelled to work out a debt. A case 
which is very strong upon this subject is Bailey z'. State of Ala- 
bama,^ ^ the court holding that a State cannot by statute create 
a presumption that the person who contracts to labor and thereby 
receives advances from his employer, and abandons the service 
without refunding the money, prima facie intends to defraud his 
employer, and that if the jury finds that such is the case, can be 
punished by imprisonment in the county jail. For a convict to 
be compelled to work out a fine by personal service for a surety 
who has paid his fine, is peonage and involuntary servitude, for- 
bidden by the Thirteenth Amendment. ^^ 

In an interesting opinion by Attorney General Moody, after- 
ward Justice of the Supreme Court of the United States, ren- 
dered for the guidance of the Panama Canal Commission, he 
says : ^^ 

''I have no hesitation in saying that any person held to labor 
or service against his will, although he may have voluntarily 



" 219 U. S. 219 (1911). 

"* United States v. Reynolds and United States v. Broughton, 235 U. 
S. 133, 150 (1914). 

" 25 Op. Atty. Gen. 474, 477. 

[7] 



contracted to submit himself to such control, is in a condi- 
tion of involuntary servitude within the meaning of the 
Constitution." 

He pointed out, however, that there were exceptions in the case 
of deserting seamen, children, wards, soldiers and sailors. He 
also said : ^"* 

**A laborer may agree to serve for a specified time, and is lia- 
ble for damages for the breach of his contract, and may, in 
certain extreme cases, be made by law punishable for the 
willful abandonment of his labor. But when he is held by 
compulsion of law or force to complete the labor which he 
has engaged to perform, he is thereby held in a condition of 
involuntary servitude." 

All of the illustrations used by the Attorney General show, how- 
ever, that he has in mind private, not public, service on the part 
of the employees. There is no constitutional right of the em- 
ployees to close the Panama Canal by a concerted quitting of 
work. 

Professor Freund points out ^^ that a number of States have 
made it a misdemeanor for railroad engineers or conductors, 
in furtherance of a strike, to abandon their locomotives or trains 
elsewhere than at the place of destination, and the author reaches 
the final conclusion that in a business affected with a public in- 
terest, the violation of a contract of service which is essential to 
the carrying on of the business, may, as a matter of constitu- 
tional power, be punished. 

In the case of Butler z'. Perry,^*^ it was held that the statute of 
Florida requiring every able-bodied man to work on the public 
roads for six days in a year, was constitutional. The court 
pointed out that from the earliest times in English law, a man 
could be compelled to march against the enemy and to repair 
roads and bridges, and that nowhere had laws requiring labor 
upon public roads been regarded as involuntary servitude. It 
will also be observed that a man who works on the roads gets 
no pay whatever for the service. His employment is public and 

'* P. 482. 

" Freund, Police Power (1904), § 452. 

" 240 U. S. 328 (1916). 

[8] 



X . 



•» • 



he performs his duties as a citizen. If the public necessity re- 
quired it, could not the citizen be compelled, not only to build 
a road, but to operate it as well, whether he had promised to do 
so or not? Has the arm of the nation grown so weak that it 
cannot draft men to operate the railroads of the country in case 
of necessity, even in time of peace? 

In considering the duty of a seaman not to desert his ship, it 
should be borne in mind that the owners of general ships, carry- 
ing goods or merchandise for hire in the usual course of busi- 
ness, are common carriers, so that, except where a ship is engaged 
in private employment, the case of the seaman is exactly similar 
to that of the railroad employee engaged in transportation. This 
analog}^ fails in the case of a ship chartered for special cargo, 
and which does not hold itself out as carrying goods for the 
public, although indirectly it is still a matter of great public im- 
portance. In Robertson z'. Baldwin ^"^ it does not appear that 
the ship was even a common carrier. 

We are apt to forget that even in times of peace the State has 
the right to compel our service for the public good. I have 
already mentioned the case of working the roads. Another ex- 
ample is where a sheriff summons us to serve upon a posse comi- 
tatus to assist in preserving the j^eace. It is a misdemeanor to 
disobey the summons of a sheriff. A peace officer has the right 
to summon bystanders to assist him in making an arrest, and the 
bystander is bound to respond. Although there is seldom oc- 
casion to enforce the law upon the subject, a man may be com- 
pelled to accept office and serve the State even without compensa- 
tion. I venture to think that the powers of the United States will 
be found adequate to man every train in this country, if the public 
necessity should require it, and Congress should see fit to ])ring 
its full powers into action, and this not only in time of war, but 
in time of peace. 

We are accustomed to the idea of military conscription, but 
civil conscription, the compulsion of the citizens to satisfy any 
civil need of the State, is just as well established by the com- 
mon law. Every citizen is bound to render to the State neces- 



" Supra, note 3. 



[9] 



'I 



sary service, whether in i)eace or in war. The sovereign may 
require of the subject anything that does not necessitate the sub- 
ject's exile from the reahn. W'e have become so accustomed to 
compulsion to sit upon juries, and compulsion to api>ear as wit- 
nesses, that we hardly think of them as being; in the nature of 
conscription. In times of coal famine, the State could compel 
the service of its citizens to operate the mines — nor is the State 
bound to pay compensation for the service. ^*^ 

In the case of Re Debs.^^ it was a time of peace, if it mav be 
called peace when the skies of Chicag^o were reddened with the 
flames of burning freight cars and militia were retreating- before 
the mob. The I'nited States, on its own ])ehalf, entered the 
courts and kept the railroads going ])y enjoining unlawful in- 
terference with interstate commerce and the transportation of 
the mails. The nation, itself, was not ashamed to use the rieht 
of injunction for this purpose, and a great President sent the 
troops of the United States to the City of Chicag:o to maintain 
the law, and enforce the orderly proces.ses of the courts. 

It is interesting to observe that in tlie Clayton Act of October 
15, 1914,-*^ supplementing the existing: laws ag-ainst unlawful re- 
straints and monopolies, and for other purposes, while the teeth 
of the Federal courts for punishing contempt of decrees made 
in labor cases were being- drawn, exception was made ])y Section 
24 in case of decrees in suits ])rought ])y or prosecuted in the 
name of or on behalf of the United States. 

By the Act of August 29, 1916,-^ it is provided that: 

"The President, in time of war, is empowered, through the 
Secretary of War, to take possession and assume control of 
any system or systems ji transportation, or any part there- 
of, and to utilize the same, to the exclusion as far as may 
l)e necessary of all other traffic thereon, for the transfer or 
transportation of troops, war material and equipment, or 
for such other purj)oses connected with the emergency as 
may be needful or desirable." 

" 30 Harv. Law Rev. 265. "'Civil Conscription in the United States." 

'* 158 U. S. 5G4 ( 1895). 

"" 38 Stat. L. 739; U. S. Comp. '16, § 1245d. 

^ C. 418, Supp. to U. S. Comp. Stat.. § 1789a. 

Iiol 



I 



I 



r 



- I 



Indeed, Congress had gone much further than this. By the Act 
of January 31, 1862,^^ it w^as enacted, 

'That the President of the United States, when in his judg- 
ment the public safety may require it, be, and he is hereby 
authorized to take possession of any or all the telegraph 
lines in the United States, their offfces and appurtenances ; 
to take possession of any or all the railroad lines in the 
United States, their rolling stock, their offices, shops, build- 
ings, and all their appendages and appurtenances; to pre- 
scribe rules and regulations for the holding, using and main- 
taining of the aforesaid telegraph and railroad lines, and to 
extend, repair, and complete the same, in the manner most 
conducive to the safety and interest of the Government: to 
place under military control all the officers, agents, and em- 
ployees belonging to the telegraph and railroad lines thus 
taken possession of by the President, so that they shall be 
considered as a post road and a part of the military estab- 
lishment of the United States, subject to all the restrictions 
imposed by the rules and articles of war." 

It is interesting- to observe that this statute purports to be en- 
acted under the power to estaljlish post roads, as well as under 
the war power. It might also have been enacted under the power 
to regulate commerce among the several States. 

The Canadian Industrial Investigation Disputes Act of 
1907 ^^ was assented to on March 22, 1907. It applied originally 
only to mines and public utilities. The punishment of employers 
for lockouts, i)ending investigation, is not less than one hundred 
dollars or more than one thousand dollars for each day of the 
lockout : -"^ and against employees for striking, pending investiga- 
tion, is not less than ten dollars or more than fiftv dollars for 
each day of the strike. ^^ By agreement in advance, the award 
of the Board may be made a rule of court and enforcil)le as 
such.^''* Since its enactment in 1907, according to the last figures 
I have seen, there have been one hundred and seventy-seven ap- 
plications for the establishment of a Board, one hundred and 



"^ 12 Stat. L. 334. 

=^ Stats. Canada, 6 & 7 Edw. (1907), c. 20, p. 235. 

« § 58. ^^ § 59. 

-« § 62. 

[11] 






fifty-eight of which were granted by the government, and in all 
but nineteen of the cases where findings were made they were 
carried out voluntarily. From March 22, 1907, until October 
18, 1916, the Act averted eighty-five out of ninety-two threat- 
ened strikes on railroads. It is to be noted that in the Canadian 
Act the investigation is made under oath, and it is sufficient that 
either party shall apply for it. 

In the Xew Zealand Industrial and Arbitration Act of 1904, 
the awards are enforced against both sides by financial penalties, 
which may amount to as much as two thousand, five hundred 
dollars. Associations of employees and workmen are incorpo- 
rated. There are similar laws in effect in Australia.-' 

A similar statute was passed in Colorado. April 10, 1915. -« 
The Colorado Act applies to industrial disputes of all sorts. The 
practical exi)erience of civil war. as a result of industrial dis- 
putes, has undoubtedly had a very persuasive effect in inducing 
the passage of this Act in Colorado. Incidentally, it may l>e re- 
marked that the great advantage of having the award made an 
order of court is this: there is an impartial tribunal always 
ready to construe the award when needed. 

From the Monthly Rcziczc of the United States Bureau of 
Labor Statisties'^ it appears that, while the Trades & Labor 
Congress of Canada recently recpiested a rei)€al of the Canadian 
Industrial Disputes Investigation Act. the Canadian Federation 
of Labor has approved the provisions of the Act and recom- 
mended that the enforcement of awards under it he made com- 
pulsory, and that it be extended to government emplovees not 
coming under the Civil Service Act, and to all industries. The 
scope of the Act was also extended by Order in Council to cover 
disputes in industries producing war munitions of all sorts. The 
Canadian Minister of Labor is now considering various improve- 
ments, l>orrowed in a large measure from exi>erience in Austral- 
asia, shortening the time of setting the Act in operation, doing 
away with the expense of having a strike vote in advance, and 
providing for a secret vote by ballot before strikes are called. In 



•^ Independent, September 4, 1916. 
" Colo. Laws, 1915, c. 180, p. 562. 
" Vol. 3, no. 6, December, 1916. 



[12] 



; 



« 1 1 



order to avoid controversy, it is possible that the proposed im- 
provements will not be introduced into Parliament until the 
termination of the present war. Two of the important new 
provisions are, one that a municipality interested or the Minister 
of Labor may of his own motion bring about the constitution of 
a Board in case of long continued or serious disputes in any in- 
dustry, and another for the reconvention of the Board wlien 
any question arises as to the meaning or application of its rec- 
ommendation.^*^ 

On September 26th, 1916, in an address before the Grain 
Dealers National Association at Baltimore, Honorable Judson C. 
Clements, Interstate Commerce Commissioner, made the fol- 
lowing statements : 

*'I am led, after much thought, to suggest that an effective 
and just remedy will be found in the recognition of the 
principle that those who engage as employees in the pub- 
lic service of the transportation companies are just as much 
in interstate commerce as are the companies themselves, 
and that such employees are affected in respect thereof, in 
the same way and to the same extent as are the companies 
themselves, with a public interest which they can no 
more ignore than can the transportation companies. The 
law makes it mandatory ujx)n the carrying companies to 
move traffic which is offered, and they are subject to the 
process of mandamus to compel them to do so. They may 
accomplish this through an organized corps of employees ; 
and can it be possible that the inanimate corporation is 
subject to the law and to the public interest, while the nec- 
essary employees through which it must perform its du- 
ties are free from public responsibility in connection with 
the service in which it is engaged? 

"If these premises are sound, what is the practical rem- 
edy to be applied ? I would suggest that it is to wTite into 
the law a legally established obligation and duty upon 
every employee who seeks and accepts service with the 
transportation companies not to leave the service, or com- 
bine with others to do so, on account of any controversy 
thereafter arising concerning any change in the conditions 



30 



For the draft of a law, proposed to amend the Industrial Disputes 
Investigation Act of 1907, see Railway Strikes and Lockouts (1916), 
supra, p. 109. 

[13] 



of service or rates of compensation, except upon due and 
reasonable notice to be prescribed by statute permitting a 
sutiicient length of time for a fair and impartial investiga- 
tion and determination of the matter in controversy, either 
by arbitration or by some duly constituted public tribunal." 

The bill which was introduced in the House of Repre- 
sentatives, February 5, 1917, by Mr. Adamson,^^ in the Senate, 
February 8, 1917, by Mr. Xewlands,^- to amend an Act pro- 
viding mediation, conciliation, and so forth, approved July 15, 
1913: to authorize the President to protect the operation of 
trains in time of peace, and to take possession of the common 
carriers and draft their crews and officials in time of war, and 
for other purposes; had some very serious defects. During the 
three months in which the proposed Board are allowed to make 
their findings, all of which would probably be required, there 
is nothing to prevent a full stop of railroad transportation of 
the country, with the resulting overwhelming misery, damage, 
injury and loss to the whole people. In order to allow pe- 
cuniary pressure to be put on the railroad companies, ruinous 
and disastrous pressure is allowed to be put on the people of the 
whole country, who must be depri\ed of the necessities of life 
in order that the trainmen may secure more acceptable condi- 
tions of employment. To suppose that the people of the United 
States would submit to the deprivation of the prime necessity 
of transportation is a most unreasonable idea. Long before 
the Commission would ever make its report, the deliberations 
of the Board would be forgotten in the suffering of the public, 
and a summarv end would have been made to the situation. 
The pressure of the public need would require that another 
Congress give the remedy which the late Congress refused. The 
second objection is that the bill makes no provision for the 
emergency of the cessation of transportation in time of peace. 
In time of war the President is given the power to take over 
the railroads of the country and operate them. In time 
of peace, he can only sit still. The emergency requiring the 
transportation of troops, military equipment and supplies of the 
United States in time of war is a serious thing, but it is nothing 



31 



H. R. 20752. 



*• S. 8201. 



as compared with the emergency of the entire cessation of 
transportation in time of peace. The bill makes elaborate pro- 
vision for the smaller misfortune, but leaves the pubHc exposed 
to the greater one. After reading the bill, one is compelled to 
ask, Avhy is the right of four hundred thousand men to strike 
to be preferred over the right of a hundred million people to 
have the necessities of life without interruption? Have the 
people of the United States no rights in the matter? 

In the report of the Committee on Interstate and Foreign 
Commerce of the House of Representatives, of February 6th, 
1917,^^ there occurs the following interesting passage: 

****** the committee did not deem it wise nor just to 
prohibit strikes and lockouts, either temporarily or per- 
manently, without first providing a peaceable, civilized, 
si>eedy, and just method or tribunal to determine all dif- 
ferences by peaceable means. Until such tribunal or me- 
thod can be established it would not be wise or just to take 
away the right of strike or lockout." 

The report does not throw any light upon the question why the 
Committee did not provide such a method or tribunal instead 
of leaving the employees as before, with no remedy but to 
strike. 

In the report submitted by Senator Newlands from the Com- 
mittee on Interstate Commerce, February 10. 1917, to accom- 
pany Senate Bill 8201, the following passage occurs: 



a 



Whilst a minority of the committee, including the chairman, 
realize that the strike is the only effective weapon which 
labor has thus far had in enforcing its just claims and that 
it has been useful and effective in accomplishing needed re- 
forms as to the hours, wages and conditions of labor, they 
feel that the advance of civilization requires the substitu- 
tion of reason for force in all contentions between the State 
and the individual and between man and man, as well as 
between nations. Viewed in this light, the strike, whilst 
thus far and under existing conditions needed in order to 
secure for labor a just consideration of its rights, has been 
a process resulting in serious economic losses to both em- 
ployers and employees, and in the last analysis, a resort to 



33 



Accompanying H. R. 20752. 



[15] 






violence, it would appear to be the duty of Congress in its 
control of interstate commerce to see that a fair tribunal 
shall be created for the adjustment of lalx)r disputes, and 
that when that tribunal is secured, the rig-ht of strike, as 
well as the right of lockout, should be suspended. 

"They feel that this is particularly true regarding the con- 
duct of interstate transix)rtation, a great public service, in- 
trusted by the Government to quasi-pulMic corporations, of 
such a nature that any suspension in its operations for a 
time, however short, inflicts grievous and unsupi>ortable 
wrongs upon society at large, involving the paralvsis of 
production and trade, and ultimately suffering, distress, and 
starvation. They feel that the public interest requires that 
such a public service should not be subject to interruptions, 
and that whatever may be said in favor of the right of strike 
in other activities, no excuse can l3e presented for the neg- 
ligence of civilized society in permitting for a moment the 
great^ highways of transportation to be obstructed. As, 
therefore, the governmental investigation provided for by 
the reported bill is intended, first, to ascertain the facts; 
second, to ascertain the cause of the difficulty; and. third, 
to suggest a remedy with the view of producing an enlight- 
ened public sentiment both among the disputants and the 
community at large which would result in a peaceful ad- 
justment of the dispute, they believe that the right of strike 
and lockout ought to be suspended during this i>eriod of 
investigation and for a reasonable time thereafter. In this 
view, however, they have been overruled by their asso- 
ciates." 

Another unfortunate feature of this l)ill is that it makes the 
same officers who endeavor to conciliate the respective par- 
ties afterward sit on a trilmnal to make recommendations for 
a settlement of the dispute. When they are engaged in the 
work of conciliation it is their duty to ascertain, if possible, 
from either side how far they would be willing to go in the in- 
terest of i>eace. Obviously, if they have to sit later as a board 
to make recommendations upon the merits, the contending par- 
ties will hesitate exceedingly in giving this information, as it 
might be used against them when the final recommendations 
are made. 

A bill was introduced by Mr. Sims ^-^ January 30, 1917, to 



S4 



H. R. 20630. 



[16] 










authorize the President of the United States in certain emer- 
gencies to take possession of and operate the lines of a com- 
merce carrier engaged in interstate commerce, and for other 
purposes, which specially provides that in case of actual or 
threatened strike on any railroad the President may take pos- 
session of and oi>erate the road in the manner most conducive 
to the safety and welfare of the public, afterward restoring the 
property to its owners when the public interest and safety no 
longer require the continued possession and operation by the 
United States. This bill is much less elaborate than the one 
introduced by Mr. Adamson, and its details could doubtless 
be considerably improved. What it proposes, however, is in 
the interest of the whole people, and not of any particular class, 
and at least this much protection ought to l)e given to the pul)- 
lic. The bill, however, does not meet the fundamental mischief 
that if there were a general railroad strike the experienced men 
would all leave their posts, and the Government would have to 
make the best shift it could under the circumstances. It would 
be just as reasonable if, during the progress of a war, all of the 
regular troops of the United States should lay down their arms 
and call upon the Government to fill their places with volunteers, 
or the best way it could. If anybody has to be drafted to per- 
form a public service, why not the man who is most fit ? Both of 
these bills proceed on the idea that nothing must be done to pre- 
vent railroad employees from quitting all at once, by preconcerted 
airangement, and that it is necessary in order for the railroad 
employees to put pressure on the railroad companies, that the 
railroad employees should have the right to stop transportation 
everywhere at the same moment. If this hurts the public, it is 
the making of the strikers. 

In H. R. 20907, introduced in the House of Representatives 
by Mr. Lenroot February 14, 1917, to amend an act providing 
mediation, conciliation, and so forth, approved July 15, 1913, the 
ingenious provision is made that it shall be unlawful for employers 
to increase wages or to compromise or adjust a controversv with 
their employees in any way that will cause an increase in the 
operating costs of the employer, while official investigation is 
pending. This would probably be a very effective provision to 

[ir] 



prevent a strike, but there is still the question, what would be- 
come of the public if a general strike occurred, nevertheless. 

It is interesting to observe that to H. R. 20632, making ap- 
propriations for the naval service for the fiscal year ending June 
30, 1918, the House added a provision making it unlawful to in- 
cite employees engaged in work for the Government to leave 
such work, or to engage in strikes, i>enalties by way of fines and 
imprisonment being provided. 

A bill has been introduced ( House 53S) in the Legislature of 
the State of California, which not only provides for the appoint- 
ment of a Board of Mediation to investigate labor disputes and 
suggest terms of settlement, but compels public utilities and their 
employees to submit statements of their disputes and differ- 
ences to the Railroad Commission and to await investigation of 
such disputes before a strike or lockout is called, and imposes 
penalties to secure obedience. 

A bill has also been introduced into the Minnesota Legislature, 
House 206, providing for the appointment of a Board of Con- 
ciliation and Mediation of three members, and prohibiting strikes 
and lockouts until the investigation has been completed, includ- 
ing recommendations for settlement. 

As showing the point of view of the business men of the coun- 
try upon this question, the Chamber of Commerce of the United 
States of America, as appears from their Special Bulletin of 
February 12, 1917, recently submitted the matter to a referen- 
dum of its members with the following results. 

The questions submitted by the Committee and the result of 
the balloting were as follows : 

L Shall existing law be so amended or supplemented as to re- 
quire full public investigation of the merits of every dispute 
between railroad carriers of interstate commerce and 
their employees, to be instituted and completed before any 
steps tending to the interruption of transportation shall be 
attempted ? 

1226^ votes in favor. 
18^ votes against. 

n. Shall existing law be so amended or sup|)lemented as to 
provide that upon any board of investigation or arbitration 
of disputes between railroad carriers of interstate commerce 

[18] 



* % 



< ^ % 



and their employees, the employers and employees shall have 
equal representation and the public, as having paramount 
interest, shall have a majority representation? 

WGSYi votes in favor. 
60j/2 voteh against. 

HL Should Congress establish a i:>€rmanent statistical divi- 
sion under the Interstate Commerce Commission to study 
and compile statistics relating to wages and conditions of 
service upon railways, the records and services of this di- 
vision to be immediatelv available to boards of investigation 
or arbitration considering disputes between railways and 
the employees? 

1171 votes in favor. 
70 votes against. 

The necessities of public service in this country make a strike 
upon a railroad an economic crime, and a general railroad 
strike, if persisted in, would inevitably result in revolution, as 
the commercial interests of the country could not endure the 
cessation of transportation. Hitherto, the recurring contro- 
versies in regard to the amount of wages have been settled l\v 
temporary arbitrators, called from the 1:)ody of the people, and 
disappearing again, without previous experience or the tradi- 
tions of permanent administration. The body which decides 
what wages shall be, should be the body which controls the 
earning of the wages, the body which regulates the rates and 
charges, which make the payment of wages possible. No satis- 
factory solution of the problem of railroad wages can be found, 
short of their control ])y the rate-making bodies, established by 
the government. The settlement of wage disputes should be a 
branch of the activities of the Interstate Commerce Commis- 
sion. Only their great powers are adequate to the task, and 
they alone are in position to see that the wages are found in or- 
der that they may be paid.^^ 

One can hardly rise from a serious consideration of the 

■''^ See bill introduced by Senator Underwood, December 5, 1916, S. 
7031, granting to the Interstate Commerce Commission power to fix 
hours of work and wages. As to whether or not such an arrangement 
would be constitutional we are likely to know more when the Supreme 
Court decides the pending case of Wilson v. New and Ferris, Receivers, 
involving the validity of the so-called Adamson Law. 



i 



<^-%v 



u^ 



problem of labor disputes witliont the feeling that the legal 
status of wage quarrels is today little beyond trial by battle. 
Human genius has been adequate to find a peaceable substitute 
for private vengeance. To create through an international tri- 
bunal and international police an efficient substitute for war, 
is a plan which many competent publicists consider entirely 
practicable. If the future holds out to us a per^^etual prospect of 
petty civil wars between employers and employees, for this is 
what strikes really are in their actual operation, it will not l3e 
because the Thirteenth Amendment stands in the way of the 
American people, but because public men are unwilling to sub- 
stitute the orderly process of a tribunal for the lawless and 
cruel circumstances of industrial war. It has been observed in 
the administration of the Australian Law that the contendine 
parties, if they could have their own way about it, would rather 
have a fight than a settlement of their grievances. The public, 
however, at least in that part of the world, has finally succeeded 
in having its rights respected and is no longer compelled to 
sufifer the lack of the necessities of life in order that a compara- 
tively small number of citizens may have the joy of combat. 



Chicago, III. 



Blewett Lee. 



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